Daniel Kenduiywo & 135 others v Cabinet Secretary of Ministry of Defence & 2 others [2020] KEELC 3982 (KLR)
The bottom line
#The Environment and Land Court in Eldoret struck out landowners' attempt to undo a consent consolidation of their case, warning that second thoughts are not grounds for review.
What this practically means
#Executive summary
#Key legal issues
#Whether sufficient reasons existed to review the consolidation order of 6th November, 2019
No sufficient reason was established; the enjoinment was by consent with no fraud, mistake or coercion, no error on the face of the record and no new evidence, and the petition contained no adverse possession claim.
The court traced the record showing all counsel, including the Petitioners', supported consolidation on 22nd October, 2019. The Petitioners' claimed prejudice to an adverse possession claim was contradicted by the petition's own prayers, which sought declarations on ownership, that the 1979 compulsory acquisition was void, and prerogative orders. Independent hearing would double costs and time. The application was therefore an abuse of process aimed at delay.
Whether the unsigned Motion was a competent application
The Motion was unsigned by the advocate both at the signature part and the 'drawn & filed by' part, rendering it incompetent and liable to be struck out.
The court noted the Motion bore the advocate's name but no signature at the designated parts. Without signature there was no competent application for review before the court, an independent ground for striking it out regardless of merit.
Whether the application was properly before the court given non-service on parties to the consolidated suits
The Motion should have been filed in Eldoret ELC No. 23 of 2019 and served on all parties in the three matters; parties in the other two suits filed no replies or submissions, indicating non-service.
The consolidation order directed that all future filings take place in ELC No. 23 of 2019. The review application was filed in the petition file without service on the parties in the two consolidated suits who were involved in the proceedings leading to the ruling under review. This was a further procedural defect.
Legal principles established
#- Sufficient reason for review is not established by a party's change of mind about a consent consolidation order, absent fraud, mistake, misrepresentation, coercion, error on the face of the record or new evidence.
Court orders
#- 1.The Petitioners' unsigned Motion dated 3rd March, 2020 and filed on 4th March, 2020 is struck out
- 2.Costs of the application to the Respondents
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 13(1) of the Environment and Land Court Act; Order 45 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act (review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Kenduiywo & 135 others v Cabinet Secretary of Ministry of Defence & 2 others [2020] KEELC 3982 (KLR)", Case Analysis (2020). ELC Petition No. 11 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3982/eng@2020-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.